Citation Nr: 9835037
Decision Date: 11/27/98 Archive Date: 12/01/98
DOCKET NO. 95-34 764 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to a compensable rating for residuals of a stress
fracture of the second metatarsal of the right foot.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
D. M. Casula, Associate Counsel
INTRODUCTION
The veteran had active military service from September 1992
to April 1993.
This matter comes before the Board of Veterans’ Appeals
(Board) from a June 1994 rating decision of the Boston,
Massachusetts Regional Office (RO) of the Department of
Veterans Affairs (VA) which granted service connection and a
noncompensable rating for residuals of a stress fracture of
the second metatarsal of the right foot.
In October 1997 the veteran failed to report for a Travel
Board hearing. The Board also notes that the most recent
correspondence sent to the veteran by the Board on September
28, 1998 was returned to sender as undeliverable.
REMAND
The veteran contends that his residuals of a stress fracture
of the second metatarsal of the right foot are more severely
disabling than the current rating indicates. He claims that
he has at least a moderate level of impairment. He contends
that he has foot pain and has trouble standing, running, and
sometimes with walking.
Service medical records reveal that the veteran was seen
several times for right foot pain. A February 1993 Medical
Board report showed a diagnosis of stress fracture of the
second metatarsal of the right foot. It was noted that the
veteran complained continually of pain at the second
metatarsal. Examination of both feet revealed a complete
collapse of the medial longitudinal arch and a rolling in of
the rearfoot, bilaterally. The legs were noted to be
“straight” on the frontal plane. There was no erythema,
edema, or ecchymosis. Range of motion was within normal
limits. He had a “normal gait cycle from heel-strike to
toe-off in an out-toe fashion”. Deep tendon reflexes and
neurovascular status were within normal limits. He was
subsequently discharged due to disability and given severance
pay.
On VA examination in August 1993 the veteran reported he was
still unable to march and run. Examination revealed he
walked without a limp and had a good arch in the right foot.
Tenderness was noted over the entire shaft of the right
second metatarsal. X-rays revealed an increased density and
widening of the second metatarsal shaft proximally,
compatible with the history of a stress fracture. Stress
fracture of the right second metatarsal, with residual
complaints, was diagnosed.
In DeLuca v. Brown, 8 Vet. App. 202 (1995) the Court pointed
out that orthopedic examinations must include consideration
of all factors identified in 38 C.F.R. §§ 4.40 and 4.45
(1998). Those regulations, in part, require consideration of
limitation of movement, weakened movement, excess
fatigability, and incoordination, as well as pain and
limitation of motion due to pain. The examination report
must provide detailed information concerning functional loss
in order to permit the Board to consider the applicable
regulations.
The most recent VA examination (and the service medical
records) show that the veteran had no gait impairment and
minimal disability as a result of the stress fracture of the
second metatarsal of the right foot. The VA examination,
however, does not provide adequate commentary on his
complaints of foot pain and troubles with standing, walking,
and running and on the factors listed in 38 C.F.R. §§ 4.40
and 4.45. Hence, it is insufficient for rating purposes.
The VA has a duty to assist the veteran in the development of
all facts pertinent to his claim. 38 U.S.C.A. § 5107(a)(West
1991 & Supp. 1998). Nevertheless, the duty to assist “is
not a one way street.’ The veteran must cooperate with the
VA in developing his claim, including appearing for scheduled
examinations and keeping VA apprised of his whereabouts. In
light of the foregoing, the case is REMANDED to the RO for
the following:
1. The RO should ascertain the veteran’s
current address, then obtain from him the
names and addresses of all medical care
providers (VA and private) who have
treated him for residuals of a stress
fracture of the second metatarsal of the
right foot, since his discharge from
service. The RO should obtain copies of
all pertinent records from the identified
treatment sources and associate them with
the claims folder.
2. The veteran should be scheduled for a
VA orthopedic examination to evaluate the
current severity of his residuals of a
stress fracture of the second metatarsal
of the right foot, including any
additional restrictions due to pain. The
claims file and any additional treatment
records must be reviewed by the examiner.
Any indicated studies should be done.
Any restriction of motion should be noted
(with normal ranges reported). The
examiner should indicate whether there
are any further limitations due to pain
and, if so, quantify the degree of
additional impairment due to pain. The
report should describe in detail the
extent of any functional loss due to the
stress fracture residuals. In
conjunction with the scheduling of the
examination the veteran should be advised
that a failure to report will result in a
denial of his claim under 38 C.F.R.
§ 3.655.
4. The RO should then review the record
and readjudicate the claim, applying
38 C.F.R. § 3.655(b), if indicated. If
it remains denied, the veteran and his
representative should be provided an
appropriate supplemental statement of the
case and given an opportunity to respond.
Thereafter, the claim should be returned to the Board for
further review. No action is required of the veteran unless
he receives further notice.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
GEORGE R. SENYK
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1998) , only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Veterans Appeals. This remand is
in the nature of a preliminary order and does not constitute
a decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (1998).
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